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Posted 6/10/13 at 12:34 PM | Trey Dimsdale, J.D.
Many people have followed the heart-wrenching case of Sarah Murnaghan for the past several weeks and most of those people have been hoping and praying for a miracle. Sarah is the 10-year old little girl who has been very near death in a Philadelphia children’s hospital awaiting a lung transplant. According to the rules that govern organ transplantation, Sarah is two years shy of the birthday that would allow her to be considered for an adult pair of lungs, so she is forced to wait for a rare set of pediatric lungs while patients in less dire need receive lungs from adult donors. The media has taken up Sarah’s cause and even the United States House of Representatives has gotten involved. Secretary of Health and Human Services Kathleen Sebelius, the government official with the authority to suspend the rules that keep Sarah at a disadvantage in her wait for organs, appeared by a House panel last week. Rep. Lou Barletta of Pennsylvania urged the Secretary, "I'm begging you. ... She has three to five weeks to live. Please suspend the rules.” Sebelius acknowledged that his is an "incredibly agonizing situation”, but reiterated that she cannot suspend the rules in this case. The family, however, appealed to a federal court on Wednesday, June 3 and the court ordered Sebelius to lift the application of the rule in this case.
As a parent, I sympathize with the Murnaghan family. No parent can blame them for seeking to move heaven and earth to save their daughter. In fact, their selfless dedication to their daughter is refreshing in a world that seems to marginalize children and allows (and often encourages) parents to kill their unborn children who have the same disease that imperils Sarah’s life. That being said, however, this is a rare case in which I agree with Kathleen Sebelius. I am fully aware that Sebelius’s course of action means certain death for Sarah, which means that it is not a course that should be taken easily or lightly, but it is one that needs to be taken dispassionately and distantly.
If Sebelius had lifted the rule in this one emotionally charged case, what then does she do in the next emotionally charged case? One unique thing about this topic is that every decision made about organ donation is a life and death decision. When ten people need an organ, only one can receive it and the other nine cannot. The rules are in place to ensure that all ten of those candidates have the best chance of survival. It may be that because one rather than the other receives the organ, someone will die, but the rules must strike a balance and be based on factors that are very unsettling to consider.
Organs are allocated in a way that considers several factors. A patient who likely will die of cancer within six months will not be a viable candidate for a heart transplant when the heart that they have would otherwise keep them alive for two more years. This is not to say that that patient’s life is not valuable. Of course it is, but the person who can be given the same heart and be expected to live for fifteen more years is equally as valuable and the organ has the chance to give more life, more happiness, and do more good in the second patient rather than the first. These are the types of decisions that are hard, that wreak of utilitarian paternalism, but are none-the-less necessary. Dispassionate and rigid rules which are based on likely outcomes insulate these terribly agonizing decisions from being made on the basis on irrlevant factors.
Had Sebelius granted the waiver, she would invited a flood of appeals for similar treatment and at the point that a rule has so many exceptions, the rule simply ceases to exist. The federal court in this instance did no favors to the system and in the wake of the court’s ruling, other similar motions have been filed for other patients. As dispassionate as judges and bureaucrats try to be, they are still human and can be moved by emotionally charged stories. The best system is one that regularly reviews medical statistics and forms rules for organ donation based on the assumption that the maximum prolongation of life is an unambiguous good. It is easy to advocate for a suffering and dying ten year old girl, but how many would rush to defend the appeal of a war criminal or serial killer seeking a bureaucratic or judicial exemption to the rule? Rules based on available technology, likely outcomes, and respect for all life will keep any of us from ever being forced to do either.
Posted 6/9/13 at 12:14 AM | Trey Dimsdale, J.D.
In one scene of Homer’s Odyssey, Odysseus is told about the existence of alluring inhabitants of a craggy island known as Sirens that sing a song that is so beautiful that no man can resist it. Once a man has heard this song, he cannot help put relent to the temptation and will pilot his ship into certain shipwreck in order to reach them. Rather than steer his ship far away from the island of the sirens, he orders his men to plug their ears with beeswax, tie him to the mast of the ship, and come within sight of the shore so that he can hear the Siren’s song, but be prevented from attempting to reach them. Despite the fact that the shore of the island is littered with heaps of the “dead men’s bones lying all around, the flesh still rotting off them,” he begs his men to untie him once he hears the song. Instead, they tie him tighter and steer the ship away from the island and back on course for Ithaca and back to his wife, Penelope. FULL POST
Posted 5/25/13 at 3:07 AM | Trey Dimsdale, J.D. |
In 1803, the United States Supreme Court issued its opinion in Marbury v. Madison that established the doctrine of judicial review. This is the doctrine that enables the courts to determine whether the actions of the other two branches (most commonly the actions of Congress) are consistent with the U.S. Constitution. The doctrine has not been without criticism, but has been an accepted part of the American system for the past 200 years. It is this doctrine that makes the two cases dealing with the redefinition of marriage (Hollingsworth v. Perry and United States v. Windsor) the two most important cases in American history.
There is a long list of important U.S. Supreme Court cases. The Court’s opinions have shaped the system, the culture, and the society in which we live in ways that are often far-reaching and complex. Opinions have two critical aspects. First, the holding is the way in which the controversy before the Court is resolved—the holding identifies the winner and the loser. Second, the reasoning is the way in which the Court reached its conclusion about who the winner and the loser should be. Almost always the reasoning is much more important and has many unintended consequences for future generations and it is not uncommon to see cases in which the Court has declared the right winner and the right loser, but have stumbled upon this in a way that future havoc is inevitable. It is quite probable that the no matter the holding, Hollingsworth and Windsor will prove to be complete disasters for this nation. FULL POST
Posted 5/11/13 at 1:23 AM | Trey Dimsdale, J.D. |
The New Yorker is one of America’s oldest and most venerable magazines with a proud past stretching back to before the Great Depression. In its archives, a reader can find short stories, articles, and cartoons by such icons of American literature as E.B. White, James Thurber, John Updike, and J.D. Salinger. The most recognizable feature of the magazine is arguably its illustrated covers that reflect social issues, popular themes, and prominent people. The edition for the week of May 13, 2013, the week following Mother’s Day, is no exception. The illustration on its cover features three children peering around the corner watching two women standing in a kitchen as they hold what appears to be a homemade Mother’s Day card which they have just discovered. The undeniable purpose of this cover is to present a normalized view of a same sex household: two women and their children celebrating Mother’s Day (or is it Mothers’ Day?) in the same way that any household would celebrate it. FULL POST
Posted 3/29/13 at 1:43 AM | Trey Dimsdale, J.D. |
It is clear to anyone even remotely aware of the debate over the definition of marriage that this is a debate that is infused with religious issues. Proponents of the redefinition of marriage frequently point out that one person’s religion has nothing to do with another person’s rights or they offer an interpretation of religioun (whether Christian or otherwise) that allows, encourages, or at least does not condemn homosexuality. Opponents of the redefinition counter these arguments with appeals to the Bible or religious tradition. Quite frankly, while I am unapologetically a conservative evangelical Christian, I cannot help but wonder if this whole issue might be better resolved in the public square without these explicitly religious arguments. Before I am harpooned in the comments section below, let me explain: the fact that there is so much disagreement on the religious aspects of this issue, it is clear that we are talking past one another and this issue obviously demands a much more immediate public response than is possible if we stop to “define terms” so that we are all discussing the same issues on a level playing field. That being said, the religious arguments are extremely important because they are reflections of core beliefs of almost every religious tradition. One’s view of marriage, gender, sex, and family reflects and impacts one’s understandings of the nature of God, the nature of man, the nature of sin, and many other fundamentals of the faith. In the spirit of (mostly) leaving behind religious considerations, I attempt here to articulate a non-religious case for man-woman marriage to the exclusion of same sex marriage. FULL POST
Posted 3/26/13 at 9:25 PM | Trey Dimsdale, J.D. |
While I was a law student, I had the privilege of being a member of my law school’s National Moot Court Team and representing our school in moot court competition. Moot court is not like a mock trial, which is for the hot-headed, emotional, and shallow student (not really). Moot court is appellate advocacy—it is dignified, gentlemanly, and rigorous (all of which trial advocacy can and should be). In the artificially created world of moot court, the trial is over and you are the lawyer for one of the parties on appeal. It is your job to write the legal brief that defends one position or the other and it is your job to stand up and deliver a thirty minute defense of your mock client before a panel of mock judges. Whether it sounds like it or not, the whole process is extremely intense, very stressful, and more fun than nearly anything else that I can imagine.
In moot court cases, there are always two issues. One is a substantive issue known as “the merits.” This is usually an exciting issue that has the potential to shift the paradigm of the law. It is the issue that mock political pundits would comment on if they had the chance. The other issue is jurisdictional—the legal question turns on nuanced interpretations of obscure statutes or court decisions that do not quite fit the present circumstances. These issues are not particularly exciting to outside observers and, honestly, when a court disposes of a case on the basis of one of these types of issues in real life, there is usually public outcry about a murderer being released on a “technicality.” To my chagrin, I was pigeon-holed early as a “technicality” advocate. I always was given the jurisdictional, statutory, or otherwise mundane issue to brief and to argue. Ultimately, however, I ended up preferring these types of issues because they were free from emotion and demanded pure “lawyering skills” to advocate effectively. FULL POST
Posted 3/3/13 at 5:22 PM | Trey Dimsdale, J.D. |
As of last week, the “throne of Peter” became vacant with the resignation of Pope Benedict XVI. In just a handful of days, the College of Cardinals will meet in a closed conclave to elect the next leader of the largest religious organization in the world. Most evangelicals, even those within denominations with some form of hierarchical ecclesiology, fail to grasp the power, importance, and the influence that the Bishop of Rome holds. The Roman Catholic Church grants much more deference to its leader than other denominations in large part to theological commitments that revere the pope as the rightful heir to the authority that Jesus Christ gave to the apostles, specifically to Peter, when He ascended into Heaven. For Catholics, the pope is the premier and supreme representative of Heaven among men and through his God-guided actions, the will of God is manifested in the Roman Catholic Church. FULL POST
Posted 11/26/12 at 7:19 AM | Trey Dimsdale, J.D. |
I am a Christian. I am opposed to redefining marriage to accommodate any marital arrangement other than one man and one woman. I freely admit that my faith informs my position on this issue, but I contend that aside from issues of morality that relate directly to sexual ethics, I am opposed to redefining marriage because it is bad for families, children, and our society. As the family unravels and children are no longer linked to one mom and one dad, our society will only slide deeper and deeper into decline. In fairness, redefining marriage to allow for same-sex marriage is not the primary cause of this unraveling and subsequent decline. The redefinition of marriage as anything other than a lifetime covenant (i.e. the advent of no-fault, easy divorce) dealt the most damaging blow to families, children, and our society. Same-sex marriage is simply the next step.
That having been said, I find it fascinating that the homosexual movement has actually a tactic long used by Christians to evangelize those with other worldviews. They are attempting to proselytize supporters of traditional marriage and convert them to the ranks of homosexual supporters so that they will not end up on "the wrong side of history." A few days ago, a friend emailed me a link to a website that is the result of the efforts of an initiative at Auburn Theological Seminary that provides talking points to homosexuals, lesbians, and “allies” who want to discuss the issue of homosexual marriage with friends and family who self-identify as “Christian” and oppose homosexual marriage and other so-called “gender equalities” on the basis of their faith. The website guides users through a series of questions about the target of their efforts and attempts to predict the objections that a person may have based on denominational affiliation, regional citizenship, and a couple of other factors. Christians have long worked to systematize the beliefs of other faiths in order to understand the objections to Christianity that others are likely to have based on similar factors. Interestingly, this initiative seems to be inspired by Bishop Gene Robinson of the New Hampshire Diocese of the Episcopal Church, with regard to whom I have blogged previously. FULL POST
Posted 11/7/12 at 7:23 PM | Trey Dimsdale, J.D. |
The issues of tax exemption for religious organizations and for the individual tax benefits that come with donations to religious organizations have a complex history. Most European nations have some sort of state supported church, so when the U.S. traces our tradition of treating religious organizations differently, we trace it back to complex circumstances that are often tied to free church vs. state church arguments. We don’t face that problem here in precisely the same way given that the United States does not have a state church, but there is no doubt that we inherited it when we inherited much in our legal and social systems. In order to be valid, every law that is enacted in this country must be enacted by a body with the authority to enact it. Additionally, no matter how attenuated the connection, there must be a “public policy” justification for the law. The just and justifiable law must encourage behavior that is beneficial for society, discourage behavior that is bad for society, or both. A law does not accomplish anything if it does neither. FULL POST
Posted 11/1/12 at 2:45 PM | Trey Dimsdale, J.D. |
In the second Presidential Debate of this election cycle, President Obama was asked, “What has your administration done, or planned to do, to limit the availability of assault weapons?”
The President responded, “We’re a nation that believes in the Second Amendment, and I believe in the Second Amendment. We’ve got a long tradition of hunting and sportsmen and people who want to make sure they can protect themselves.” This response should be troubling to all Americans whether they are gun owners or not. The response that he gave reveals some fundamental problems with the President’s interpretation of our Constitution, his understanding of the nature of our rights, and his view of the role of government in our lives.